Opinion
March 28, 1955.
April 18, 1955.
Public utility law — Commission — Powers — Suspension of tariffs — Discretion — Subsequent lifting of suspension — Circumstances — Procedural due process — Interlocutory order — Appealability — Public Utility Law.
1. An appeal from an order of the Public Utility Commission which is not final and where the process of administrative adjudication has not been completed is not appealable under § 1101 of the Public Utility Law of May 28, 1937, P. L. 253.
2. Under § 308 (b) of the Public Utility Law, the commission has the power to suspend tariffs stating new rates.
3. The exercise of this statutory power by the commission is an administrative function, and, with few exceptions, is within the commission's sound discretion.
4. Exercise of the discretionary power to suspend does not preclude subsequent lifting of the suspension within the designated period.
5. There is no right in a city to a suspension or to a continuation of a suspension of the rates of a public utility.
6. The action of the commission in suspending or not suspending proposed tariffs does not indicate commission approval or nonapproval of the rates in the tariffs, the reasonableness of which remains open for ultimate disposition.
7. Under § 308 (b) of the Public Utility Law, a hearing is not always required; a statement, however, of the reasons for the suspension is to be given to the public utility affected.
8. Where it appeared that after the commission, by its order of August 11, 1953, allowed a public utility company part of a proposed rate increase, the company in compliance with the commission's order filed with the commission tariff supplements Nos. 37 and 6, which the commission by formal action accepted as being in compliance with its order, and that the rates contained therein became effective November 1, 1953; that the city, on April 15, 1954, filed a complaint against these supplemental tariffs, of which it did not seek any disposition; that the company, on June 10, 1954, filed with the commission tariff supplements Nos. 38 and 7, to become effective on August 10, 1954, and on June 25, 1954, filed additional tariff supplements, to become effective August 26, 1954, designed to produce additional gross operating revenues; that the city, on July 7, 1954, filed a complaint against both proposed increases, and that the commission, on August 9, 1954, instituted its own investigation against both increases; that the commission, on August 10, 1954, suspended tariff supplements Nos. 38 and 7 for a period of six months, and likewise suspended the subsequent tariff supplements; and that the company, on December 20, 1954, filed a petition to lift suspension of tariff supplements Nos. 38 and 7, the city filed an answer, and the commission, by order dated January 24, 1955, lifted the suspension of tariff supplements Nos. 38 and 7; it was Held that (1) tariff supplements Nos. 37 and 6 were prima facie valid; (2) there was no pending unadjudicated increase at the time tariff supplements Nos. 38 and 7 were allowed to become effective by the commission order; (3) the commission's action did not constitute denial of procedural due process; and (4) the order of the commission lifting the suspension of the proposed increase was interlocutory and, therefore, not reviewable under § 1101 (a) of the Public Utility Law.
9. Pittsburgh v. Pennsylvania Public Utility Commission, 171 Pa. Super. 391, distinguished.
Before RHODES, P.J., HIRT, ROSS, WRIGHT, WOODSIDE and ERVIN, JJ. (GUNTHER, J., absent).
Appeal, No. 89, April T., 1955, from order of Pennsylvania Public Utility Commission, Complaint Dockets Nos. 16205, 16206, 16165, and 16166, January 24, 1955, in case of City of Pittsburgh v. Pennsylvania Public Utility Commission. Appeal quashed.
Proceedings before Public Utility Commission upon complaint by city against proposed rate increases, and investigation by commission on its own motion.
Order entered by commission suspending tariff supplements for a period of six months; subsequent order entered lifting suspension of certain tariff supplements. City appealed.
Robert Engel, Assistant City Solicitor, with him J. Frank McKenna, Jr., for City of Pittsburgh, appellant.
W. Russel Hoerner, Assistant Counsel, with him Thomas M. Kerrigan, Acting Counsel, for Public Utility Commission, appellee.
David Dunlap, with him John T. Brown, for utility company, intervening appellee.
Argued March 28, 1955.
This matter is before us on a motion to quash appeal and answer thereto. The appeal was not taken from a final appealable order. The order in this proceeding being interlocutory, it is not reviewable under section 1101 (a) of the Public Utility Law of May 28, 1937, P. L. 1053, Art. XI, § 1101, 66 P. S. § 1431. A further opinion will be filed at a later date.
The appeal is quashed at the costs of appellant.
The City of Pittsburgh appealed from the order of the Pennsylvania Public Utility Commission dated January 24, 1955, at Complaint Docket Nos. 16165, 16166, 16205, 16206. The commission's order lifted a suspension of a proposed increase in rates of Equitable Gas Company previously imposed by the commission on the company's tariff supplements Nos. 38 and 7.
The commission filed a motion to quash the appeal and the company was allowed to intervene as a party appellee. To the motion to quash the city filed an answer.
The matter came on for argument before this Court on March 28, 1955. On April 18, 1955, we quashed the appeal for the reason that it was not taken from a final appealable order, and stated that a further opinion would be filed at a later date. This opinion is in accordance therewith.
The commission by its order of August 11, 1953, allowed the company a part of a proposed rate increase under tariff supplements filed January 29, 1952, and directed the company to refund to its customers the difference received under those supplements between January 1, 1953, the effective date of the increase, and October 1, 1953 (extended to November 1, 1953), the effective date of the new tariff supplements containing rates to produce the allowable revenues prescribed by the commission. The company appealed from that part of the order which directed refunds. We affirmed the commission's order. Equitable Gas Company v. Pennsylvania Public Utility Commission, 174 Pa. Super. 450, 102 A.2d 235.
On October 26, 1953, the company, in compliance with the commission's order of August 11, 1953, filed with the commission tariff supplements Nos. 37 and 6. The commission by formal action accepted these supplements as being in compliance with its order of August 11, 1953, and the rates contained therein became effective November 1, 1953.
The city, on April 15, 1954, filed a complaint against these supplemental tariffs which had been in effect from November 1, 1953. No hearing had been held or disposition made of the complaint at the time of argument, March 28, 1955, on motion to quash and answer thereto.
The company, on June 10, 1954, filed with the commission tariff supplements Nos. 38 and 7 to become effective on August 10, 1954. These supplements were designed to produce additional gross operating revenues of $1,820,300 which would equal increases in cost of purchased gas allowed by the Federal Power Commission and the related increase in income tax.
On June 25, 1954, the company filed tariff supplements Nos. 39 and 8 to become effective August 26, 1954. These supplements were designed to increase gross operating revenues by $1,906,020 annually which amount would be in addition to that proposed under tariff supplements Nos. 38 and 7, filed on June 10, 1954.
The city, on July 7, 1954, filed a complaint against both proposed increases, and the commission, on August 9, 1954, instituted its own investigation against both increases.
The commission, on August 10, 1954, suspended tariff supplements Nos. 38 and 7 for a period of six months to February 10, 1955. Tariff supplements Nos. 39 and 8 were likewise suspended to February 26, 1955.
The company, on December 20, 1954, filed with the commission a petition to lift suspension of tariff supplements Nos. 38 and 7; the city filed an answer.
By commission action on January 24, 1955, the suspension of tariff supplements Nos. 38 and 7 was lifted, and the order issued from which this appeal was taken by the city.
The question raised on motion to quash and answer is whether the appeal was taken from an interlocutory order.
We have said that an appeal from an order of the commission which is not final and where the process of administrative adjudication had not been completed was not appealable under section 1101 of the Public Utility Law of May 28, 1937, P. L. 1053, 66 P. S. § 1431. Reed v. Pennsylvania Public Utility Commission, 174 Pa. Super. 132, 100 A.2d 399; Sayre Land Company v. Pennsylvania Public Utility Commission, 167 Pa. Super. 1, 74 A.2d 713.
The commission's order of January 24, 1955, lifting suspension of tariff supplements Nos. 38 and 7 was interlocutory and not appealable.
The commission has the power to suspend tariffs stating new rates. Section 308 (b) of the Public Utility Law, 66 P. S. § 1148 (b).
The exercise of this statutory power by the commission is an administrative function, and, with few exceptions, is within the commission's sound discretion. Philadelphia v. Pennsylvania Public Utility Commission, 164 Pa. Super. 96, 103, 104, 63 A.2d 391.
Exercise of the discretionary power to suspend does not preclude subsequent lifting of the suspension within the designated period. Such discretionary power to suspend implies power to revoke the suspension during the period of suspension. There is no right to a suspension or to a continuation of a suspension. The action of the commission in suspending or not suspending proposed tariffs does not indicate commission approval or nonapproval of the rates in the tariffs, the reasonableness of which remains open for ultimate disposition. West Penn Power Company v. Pennsylvania Public Utility Commission, 174 Pa. Super. 123, 130, 131, 100 A.2d 110. The commission's order of January 24, 1955, recognizes its interlocutory nature. The commission said: "In lifting the suspension as prayed for, we are not to be understood as having made a finding that respondent is entitled to the 3.4¢ per Mcf increase now suspended to February 10, 1955. This increase would provide less than half the total increase which respondent is seeking. Our investigations . . . concerning both increases [first-step and second-step increases] will be continued with all possible expedition so that we will be in position to reach a final determination in these matters;. . ."
In Pittsburgh v. Pennsylvania Public Utility Commission, 171 Pa. Super. 391, 90 A.2d 850, we held that successive increases in rates by filing new tariffs while a rate proceeding was still undetermined were prohibited, and that the action of the commission in allowing new tariffs to become effective and the protested tariffs to be canceled was contrary to law and could not be sustained. This case is not applicable to the present controversy. In the instant case there are not successive increases, the first of which remains undetermined.
The city argues that tariff supplements Nos. 37 and 6 filed in compliance with the commission's order of August 11, 1953, and which became effective by commission approval on November 1, 1953, were invalid; and that adjudication of the complaint relative thereto was required before tariff supplements Nos. 38 and 7 could be permitted to become effective.
The city assumes the illegality of tariff supplements Nos. 37 and 6. However, these were prima facie valid. By commission action they became effective November 1, 1953. The city offered no objection until April 15, 1954, when it filed a complaint of which it has not sought any disposition. Consequently, there was no pending unadjudicated increase at the time tariff supplements Nos. 38 and 7 were allowed to become effective by commission order of January 24, 1955.
Finally, the commission's action did not constitute denial of procedural due process. There was no substantive right in the city to have the rates suspended. Under section 308 (b) of the Public Utility Law, 66 P. S. § 1148 (b), a hearing is not always required; a statement, however, of the reasons for the suspension is to be given to the public utility affected. We agree with the commission that ordinarily, as a matter of discretion, it may suspend or lift a prior suspension or, on filing of tariffs, permit rates to become effective pending hearing and decision concerning the lawfulness of such rates. In this respect the power of the commission is not without limitation; abuse of administrative power is always subject to judicial review. See Pennsylvania State Athletic Commission v. Bratton, 177 Pa. Super. 598, 606, 112 A.2d 422; Pittsburgh v. Pennsylvania Public Utility Commission, supra, 171 Pa. Super. 391, 90 A.2d 850.
For the reasons above set forth, appeal No. 89, April Term, 1955, from the commission's order of January 24, 1955, was quashed.